Friday, July 21, 2006

the very opposite of the Yoo theory of executive power

"Bushworld:Private funding for the killing of people after they have been born: illegal.Public funding for the killing of people after they have been born: legal.Public funding for the "killing" of frozen embryos that will never be born: illegal.Private funding for the "killing" of frozen embryos that will never be born: legal."

"The Bush adminstration suffered an enormous defeat today, as a federal district court denied its motion to dismiss the lawsuit brought by the Electronic Frontier Foundation against AT&T, which alleges that the administration's NSA warrantless eavesdropping program (and AT&T's cooperation with it) is illegal. Most significantly, the district court, which is in the Northern District of California, rejected the administration's claim that allowing the litigation to proceed would jeopardize the disclosure of "state secrets," a doctrine which the administration has repeatedly exploited to prevent judicial review of its conduct. Traditionally, courts almost always defer to the executive's invocation of that claim and accept the President's claim that national security requires dismissal of the case. But this time, the court rejected that claim.[]Those caveats to the side, the importance of this victory cannot be overstated. The Bush administration has been exploiting what was a rarely used doctrine to, in essence, immunize its conduct from judicial review of any kind. Because courts have been willing to assume in the past that the doctrine was invoked in good faith by the President, they have almost always deferred to it. But this court scrutinized the claim quite thoroughly, and expressed real skepticism over the administration's assertions that national security prevents any court from determining if the law is being violated as a result of warrantless eavesdropping.

Most importantly of all, the court re-affirmed one of the most basic and important principles of our system of government. That even with regard to national security, there is no such thing as a President who acts alone without interference from the other branches of government. Instead, quoting Hamdi: "Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake." That is the very opposite of the Yoo theory of executive power which has been inflicted on this country for the last five years."